Karnataka High Court
Smt.Mahadevi W/O Prasappa Marihal vs Kumar.Prateek S/O Duradundeshwar @ ... on 23 July, 2025
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RFA No. 100539 of 2018
C/W RFA No. 100149 of 2020
HC-KAR
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 23RD DAY OF JULY 2025
PRESENT
THE HON'BLE MR. JUSTICE R.NATARAJ
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO. 100539 OF 2018 (DEC/PAR)
C/W
REGULAR FIRST APPEAL NO. 100149 OF 2020 (PAR/POS)
IN RFA NO.100539 OF 2018:
BETWEEN:
SHRI. DURADUNDESHWAR @ RAVISHASTRI
S/O. NAGAPPA HANABAR,
AGE: 46 YEARS, OCC: ADVOCATE
AND AGRICULTURE,
R/O. PLOT NO.189, SECTOR NO.5,
SHREE NAGAR, M.M.EXTENSION,
BELAGAVI, TALUKA AND
DISTRICT: BELAGAVI-590017.
...APPELLANT
(BY SRI. PRANAV UMESH BADAGI, ADVOCATE FOR
SRI. S.B.HEBBALLI, ADVOCATE)
Digitally
signed by AND:
SUMA
Location:
HIGH 1. KUMAR. PRATEEK S/O. DURANDUNDESHWAR
COURT OF @ RAVISHASTRI S/O. NAGAPPA HANABAR,
KARNATAKA AGE: 11 YEARS, OCC: STUDENT,
SINCE MINOR R/BY-NATURAL GUARDIAN
MOTHER RESP. NO.2: SMT. ARATI
W/O. DURANDUNDESHWAR
@ RAVISHASTRI HANABAR,
R/O. C/O. BORAPPA BALAPPA CHINKOTI,
A PLOT NO.904, SECTOR NO.6,
VANTMURI COLONY, M.M.EXTENSION,
BELAGAVI-590017.
2. SMT. ARATI W/O. DURANDUNDESHWAR
@ RAVISHASTRI HANABAR,
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RFA No. 100539 of 2018
C/W RFA No. 100149 of 2020
HC-KAR
AGE: 38 YEARS, OCC: GOVT. MEDICAL OFFICER,
R/O. C/O. BORAPPA BALAPPA CHINKOTI.
A PLOT NO.904, SECTOR NO.6,
VANTMURI COLONY, M.M.EXTENSION,
BELAGAVI-590017.
3. KUMARI. SHRADDHA S. ANGADI
AGE: 26 YEARS, OCC: BUSINESS,
R/O. C/O. SHRI. SURESH C.ANGADI,
M.P., SADASHIV NAGAR, BELAGAVI-590001,
TALUKA AND DISTRICT: BELAGAVI.
4. SMT. MAHADEVI W/O. PRASAPPA MARIHAL
AGE: 51 YEARS, OCC: AGRICULTURE,
R/O. BHENDIGERI, TALUKA AND
DISTRICT: BELAGAVI-591109.
5. SMT. SAROJA W/O. MALLAPPA MUDDIN
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O. K.K.KOP, TALUKA AND
DISTRICT: BELAGAVI-591109.
...RESPONDENTS
(BY SRI. SURABHI KULKARNI, ADVOCATE FOR SRI. CHETAN
MUNNOLI, ADVOCATE FOR R1 AND R2;
R1 IS MINOR REP. BY R2;
SRI. VITTHAL S.TELI, ADVOCATE FOR R3;
SRI. SHARADKUMAR YADAVANNAVAR, ADVOCATE FOR R4 AND R5)
THIS RFA IS FILED INDER ORDER 41 RULE 1 AND 23(A) READ
WITH SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE
DATED 20.10.2018 PASSED IN O.S.NO.55/2012 ON THE FILE OF THE
IV ADDITIONAL SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE
FIRST CLASS, BELAGAVI, PARTLY DECREEING THE SUIT FILED FOR
DECLARATION, PARTITION AND SEPARATE POSSESSION.
IN RFA NO.100149 OF 2020:
BETWEEN:
1. SMT. MAHADEVI W/O. PRASAPPA MARIHAL
AGE: 51 YEARS, OCC: AGRICULTURE,
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RFA No. 100539 of 2018
C/W RFA No. 100149 of 2020
HC-KAR
R/O: BHENDIGERI,
TQ AND DIST: BELAGAVI-591109.
2. SMT. SAROJA W/O. MALLAPPA MUDDIN
AGE: 44 YEARS, OCC: AGRICULTURE,
R/O. K.K.KOP,
TQ AND DIST: BELAGAVI-591109.
...APPELLANTS
(BY SRI. SHARADKUMAR YADAVANNAVAR, ADVOCATE)
AND:
1. KUMAR. PRATEEK S/O. DURADUNDESHWAR
@ RAVISHASTRI S/O. NAGAPPA HANABAR,
AGE: 11 YEARS, OCC: STUDENT,
R/O. C/O. BORAPPA BALAPPA CHINKOTI,
PLOT NO.904, SECTOR NO.6,
VANTAMURI COLONY, M.M. EXTENSION,
BELAGAVI-590017,
SINCE MINOR REPRESENTED BY
NATURAL GUARDIAN MOTHER
RESPONDENT NO.2.
2. SMT. AARATI W/O. DURADUNDESHWAR
@ RAVISHASTRI S/O. NAGAPPA HANABAR,
AGE: 38 YEARS, OCC: GOVERNMENT
MEDICAL OFFICER,
R/O: C/O. BORAPPA BALAPPA CHINKOTI,
PLOT NO.904, SECTOR NO.6,
VANTAMURI COLONY, M.M. EXTENSION,
BELAGAVI-590017.
3. SHRI. DURADUNDESHWAR @ RAVISHASTRI
S/O. NAGAPPA HANABAR,
AGE: 46 YEARS, OCC: ADVOCATE
AND AGRICULTURE,
R/O: PLOT NO.189, SECTOR NO.5,
SHREE NAGAR, M.M. EXTENSION,
BELAGAVI-590017.
4. KUMARI. SHRADDHA S.ANGADI
AGE: 26 YEARS, OCC: AGRICULTURE
AND HOUSEHOLD WORK,
R/O. C/O. BEERAPPA L. KURENNAVAR,
KANGRALI B.K., TQ AND DIST: BELAGAVI,
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RFA No. 100539 of 2018
C/W RFA No. 100149 of 2020
HC-KAR
NOW PRESENTLY R/AT:
C/O. SHRI SURESH C. ANGADI
(MEMBER OF PARLIAMENT),
SADASHIV NAGAR, BELAGAVI-590001.
...RESPONDENTS
(BY SMT. SURABHI KULKARNI, ADVOCATE FOR SRI. CHETAN
MUNNOLI, ADVOCATE FOR R1 AND R2;
R1 IS MINOR REP. BY R2;
SRI. DEEPAK S.KULKARNI, ADVOCATE FOR R3;
SRI. VITTHAL S.TELI, ADVOCATE FOR R4)
THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 20.10.2018 PASSED IN
O.S.NO.55/2012 ON THE FILE OF THE IV ADDITIONAL SENIOR CIVIL
JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, BELAGAVI,
PARTLY DECREEING THE SUIT FILED FOR DECLARATION, PARTITION
AND SEPARATE POSSESSION.
THESE APPEALS COMING ON FOR FINAL HEARING THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE R.NATARAJ) The defendant No. 1 in O.S.No.55/2012 on the file of the IV Additional Senior Civil Judge and JMFC, Belagavi (hereinafter referred to as 'trial Court' for short) has filed RFA.No.100539/2018 challenging the judgment and decree dated 20.10.2018 decreeing in part the suit for partition and -5- NC: 2025:KHC-D:9125-DB RFA No. 100539 of 2018 C/W RFA No. 100149 of 2020 HC-KAR declaring that the plaintiffs are entitled to legitimate shares in the suit schedule 'A' properties.
2. Defendants No.3 and 4 in O.S.No.55/2012 have filed RFA.No.100149/2020 challenging the judgment and decree dated 20.10.2018.
3. For the sake of convenience and easy understanding, the parties shall henceforth be referred to as they were arrayed before the Trial Court.
4. The appellants herein were the defendants No.1, 3 and 4, while the respondents No.1 and 2 in both these appeals were the plaintiffs before the trial Court and the other respondents were the other defendants before the trial Court.
5. The suit in O.S.No.55/2012 was filed for partition and separate possession of the plaintiffs' share in the suit schedule properties. The suit schedule properties comprised of four agricultural lands situate at Ganikoppa village and a house property in Belagavi City. The genealogy of the plaintiffs and the defendants as mentioned in the plaint is as follows: -6-
NC: 2025:KHC-D:9125-DB RFA No. 100539 of 2018 C/W RFA No. 100149 of 2020 HC-KAR Duradundeshwar @ Ravi N.Shastri (D-1) Aarati (Plff.2)(P3) Prateek (Plff.1)
6. The plaintiffs claimed that the defendant No.1 and the plaintiffs had derived the suit 'A' properties as their share at a partition in the year 2002 between the defendant No.1 and his brother. They contend that this was evident from the mutation proceedings in ME.No.2045 of Ganikoppa village. They contend that the defendant No.1 out of the income generated from the agricultural lands had purchased the suit schedule 'B' property in the year 2004. Therefore, they contended that the suit schedule properties were not the self acquisition of defendant No.1, but were the properties of the joint family of the plaintiffs and defendants No.1. They contended that they and defendant No.1 were in actual possession and enjoyment of the suit schedule properties and there was no partition between them at any point in time. They claimed that plaintiff No.2 was the wife of defendant No.1 and plaintiff No.1 was born from their marriage. They alleged that defendant No.1 started acting inimical against the interest of the joint family as -7- NC: 2025:KHC-D:9125-DB RFA No. 100539 of 2018 C/W RFA No. 100149 of 2020 HC-KAR he was addicted to vices and was ill-treating the plaintiffs. Therefore, the plaintiffs were constrained to lodge a complaint against defendant No.1 and also sought maintenance. In view of the matrimonial disputes, the relationship between the plaintiffs and the defendant No.1 was not cordial. They contended that the suit schedule properties were generating enough income and there was no legal necessity which had to be met by alienating the properties of the joint family. However, the defendant No.1 in order to deprive the rights of the plaintiffs, executed a sale deed in respect of R.S.No.81/4+5 and R.S.No.81/1 in favour of defendant No.2. The plaintiffs therefore claimed that the said sale did not bind their interest and that they were entitled to claim their share notwithstanding the sale. Therefore, they sought for a declaration that the sale by defendant No.1 in favour of defendant No.2 in respect of R.S.No.81/4+5 and R.S.No.81/1 situate at Ganikoppa village did not bind their legitimate 2/3rd share. They therefore claimed that the suit schedule properties be divided and their 2/3rd share be bifurcated and possession be handed over. -8-
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7. The defendant No.1 contested the suit and filed a written statement denying the claim of the plaintiffs that the suit agricultural properties were derived by the defendant No.1 at a partition between him and his brother in the year 2002. He also denied that the entries were made in the revenue records pursuant to the acceptance of mutation in ME.No.2045. He admitted that the plaintiff No.2 was his wife and plaintiff No.1 was his son. He contended that plaintiff No.1 never resided with him and never led a marital life with him. He denied that he was addicted to vices and was ill-treating the plaintiffs. He also denied that suit properties were generating enough income and that there was no legal necessity to alienate R.S.No.81/4+5 and R.S.No.81/1. He contended that the plaintiff No.2 led a marital life with the defendant No.1 for few days and later left to her parental house. The defendant No.1 therefore filed a petition for dissolution of their marriage before the Family Court in Belagavi in M.C.No.181/2006. However, the plaintiff No.2 filed M.C.No.35/2007 for restitution of conjugal rights and thereafter filed Crl.Misc.No.48/2007 for maintenance, which were pending consideration. He contended that the plaintiff No.2 had compelled the defendant No.1 to withdraw the divorce -9- NC: 2025:KHC-D:9125-DB RFA No. 100539 of 2018 C/W RFA No. 100149 of 2020 HC-KAR petition and M.C.No.35/2007 filed for restitution of conjugal rights was also disposed off as he filed a memo stating that he was willing to accept plaintiff No.2 back. Consequently, Crl.Misc.No.48/2007 was dismissed as the plaintiff No.2 did not turn up for cross-examination. He claimed that the plaintiff No.2 then initiated proceedings under the Domestic Violence Act where, he was directed to pay monthly maintenance. In the meanwhile, the plaintiff No.2 along with her brother and parents assaulted him and that a case in Crime No.253/2011 was filed. He claimed that plaintiff No.2 as a counter blast, filed a complaint which resulted as Crime No.255/2011. Therefore, he contended that the plaintiffs were harassing him by one or the other litigation. He claimed that the plaintiff No.2 had always conspired to grab the suit schedule properties for which she was working overtime to implicate defendant No.1 and his family in false criminal cases. He further contended that the plaintiff No.2 was a Doctor working as a Medical Officer in Government Health Centre and despite she having sufficient income to maintain herself and plaintiff No.1, had launched false cases claiming maintenance and other reliefs. He claimed that the suit schedule 'B' property was his self acquisition as he
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NC: 2025:KHC-D:9125-DB RFA No. 100539 of 2018 C/W RFA No. 100149 of 2020 HC-KAR was an Advocate by profession and that he had raised loans from various banks and private persons for the aforesaid purpose. He also admitted that he had sold R.S.No.81/4+5 and R.S.No.81/1 to defendant No.2 to meet his family necessities namely to clear the loans raised by his father to purchase the land and tractor. He claimed that certain loans were raised from Karnataka Vikas Grameen Bank, Tigadi for the purpose of purchasing tractor-trailor and that the properties were mortgaged with the bank. He claimed that the bank wanted to sell the property and therefore, in order to save the property, the defendant No.1 and his brother had raised loans from various people and therefore, in order to meet these necessities, he sold two lands in survey numbers as mentioned above to the defendant No.2. He also claimed that the suit was not maintainable without impleading his mother and sisters as they too were interested in the suit schedule properties.
8. The defendant No.2 also filed a written statement and contended inter alia that she was a bonafide purchaser for value and that she believed the defendant No.1 was the actual owner of the suit schedule properties and that he was entitled
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NC: 2025:KHC-D:9125-DB RFA No. 100539 of 2018 C/W RFA No. 100149 of 2020 HC-KAR to alienate them. She therefore contended that she had paid the full consideration as agreed to the defendant No.1 and that he executed a deed of sale conveying the said properties to the defendant No.2 and placed her in possession.
9. The defendants No.3 and 4 were later impleaded and they also filed a written statement contending that they too had filed a suit in O.S.No.147/2013 for partition and separate possession of their shares in the suit schedule properties. They claimed that they were having independent rights over the agricultural lands excluding 'B' schedule property. They claimed that the 'B' schedule property was the independent property of defendant No.1.
10. Based on these contentions, the trial Court framed the following issues and additional issue:
"1. Whether the plaintiffs prove that suit properties are the joint family properties of plaintiff and defendants?
2. Whether the plaintiffs further prove that sale deed dated:30-3-2011 executed by defendant No.1 in favour of defendant No.2 pertaining to suit agricultural lands bearing R.S.No.81/4+5 and 81/1 situated at Ganikoppa village, Tal: Bailhongal is not legally binding upon the legitimate share of plaintiffs?
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NC: 2025:KHC-D:9125-DB RFA No. 100539 of 2018 C/W RFA No. 100149 of 2020 HC-KAR
3. Whether first defendant proves that sale deed dated:
30-3-2011 is for the benefit and for family necessity as contended in para No.12 of the written statement?
4. Whether the defendants prove that suit is bad for non-joinder of necessary parties?
5. Whether the second defendant proves that of description of suit properties are not correct?
6. Whether the second defendant further proves that genealogy furnished by the plaintiffs is not correct?
7. Whether the second defendant proves that she is bonafide purchaser of R.S. No. 81/4+5 and 81/1 situated at Ganikoppa Tal: Bailhongal for valuable consideration ?
8. Whether the second defendant further proves that this court has no jurisdiction to entertain and try the present suit as the suit schedule para No.ll (1) (A) properties are situated within the limits of Ganikoppa village in Bailhongal taluka?
9. Whether the defendants further proves that court fee paid by the plaintiff is not proper and correct ?
10. Whether the plaintiffs are entitled for the relief of declaration and relief of partition, consequential relief of injunction as prayed in the plaint?
11. What order or decree ?
Additional Issue
1) Whether the defendant proves that the house bearing CTS No. 5810, plot No. 189 sector situated at Shrinagar, M.M.Extension, Belagavi is self acquired property of first defendant?"
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11. The plaintiff No.2 was examined as PW.1 and she marked Exs.P.1 to P.10 which included the revenue records of the suit items No.1 to 4 and the municipal records of 'B' schedule property as well as the mutation entries and the copy of the sale deed executed by the defendant No.1 in favour of defendant No.2. She also placed on record Ex.P.11, which was the certified copy of partition deed entered into between the defendant No.1 and his brother. She also marked the copies of the applications and objections filed in M.C.No.181/2016. The defendant No.1 was examined as DW.1 and he marked Exs.D.1 to D.95 which primarily were the proceedings in M.C.No.181/2016, M.C.No.35/2007, Crl.Misc.No.48/2007, charge sheets filed against him, etc. Exs.D.18 to D.21 which were the bank passbooks, while Exs.D.22 to D.89 were the bank cheques, challans and payee receipts.
12. The trial Court after considering the oral and documentary evidence, answered the issues framed by it as follows:
Issue.No.1: In the Affirmative Issue.No.2: In the Affirmative Issue.No.3: In the Negative Issue.No.4: In the Negative
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NC: 2025:KHC-D:9125-DB RFA No. 100539 of 2018 C/W RFA No. 100149 of 2020 HC-KAR Issue.No.5: In the Negative Issue.No.6: In the Negative Issue.No.7: In the Negative Issue.No.8: In the Negative Issue.No.9: In the Negative Issue.No.10: Partly in the affirmative Addl. Issue.No.1: In the affirmative Issue.No.11: As per final order.
Consequently, the trial Court decreed the suit and declared that the plaintiffs are entitled to their legitimate shares in the suit schedule 'A' properties. However, insofar as 'B' schedule property is concerned, the trial Court dismissed the same on the ground that it was the self acquisition of the defendant No.1.
13. Being aggrieved by the said judgment and decree, defendant No.1 and defendants No.3 and 4 are before this Court.
14. Learned counsel for the defendant No.1 contended that after the suit schedule 'A' properties fell to the share of defendant No.1 at a partition between him and his brother in year 2002, the defendant No.1 became the absolute properties of defendant No.1 and therefore, neither the plaintiffs nor the other defendants were entitled to a share. He also contends
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NC: 2025:KHC-D:9125-DB RFA No. 100539 of 2018 C/W RFA No. 100149 of 2020 HC-KAR that the plaintiff No.2 was not entitled to share in the suit schedule properties during the lifetime of the defendant No.1.
15. The learned counsel for the defendants No.3 and 4 submitted that the defendants No.3 and 4 are also entitled to a share in the suit schedule 'A' properties and hence, the trial Court was not justified in merely holding that the plaintiffs are entitled to their legitimate shares. He contends that the judgment of the trial Court does not confirm to Order XX Rule 18 of CPC as the trial Court did not declare the shares of the plaintiffs and the defendants No.1, 3 and 4.
16. Learned counsel for the defendants in support of their claim had relied upon the judgment of the Hon'ble Apex Court in the case of ANGADI CHANDRANNA v. SHANKAR & ORS. in Civil Appeal No.5401/2025.
17. Learned counsel for the plaintiffs on the other hand contends that the plaintiff No.1 is the son of defendant No.1 and that he too has an undivided share in the suit schedule properties along with the defendants No.1, 3 and 4. Plaintiff No.2 contends that she is entitled to a share at a partition between the plaintiff No.1 and defendant No.1 and therefore,
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NC: 2025:KHC-D:9125-DB RFA No. 100539 of 2018 C/W RFA No. 100149 of 2020 HC-KAR the trial Court was justified in decreeing the suit of the plaintiffs. In support of her contention, she has relied upon by a judgment of the Hon'ble Apex Court in the case of ARSHNOOR SINGH v. HARPAL KAUR AND OTHERS reported in (2020) 14 SCC 436. She therefore contends that the trial Court was justified in decreeing the suit. She also contends that the suit schedule 'B' property was also the acquisition from out of the joint nucleus and therefore, the trial Court committed an error in not granting the share in suit schedule 'B' property. She therefore prays this Court to exercise power under Order 41 Rule 33 of CPC and decree the suit in its entirety.
18. We have given our anxious consideration to the contentions urged by the learned counsel for the defendants and the learned counsel for the plaintiffs. We have also perused the records of the trial Court and its judgment.
19. The points that arise for consideration in this appeal are:
(i) Whether the suit schedule 'A' properties could be treated as the absolute properties of the defendant No.1?
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(ii) Whether this Court should exercise jurisdiction under Order 41 Rule 33 of CPC to decree the suit in respect of the suit schedule 'B' property?
(iii) Whether the trial Court was right in not declaring the share of the plaintiffs in the suit schedule properties?
20. In so far as the first point for consideration is concerned, it is not in dispute that the suit schedule 'A' properties were ancestral properties and the defendant No.1 received them at a partition between him and his brother in the year 2002. The plaintiff No.2 was married to the defendant No.1 on 20.12.2004. The plaintiff No.1 was born thereafter. The position of law insofar as the right of the plaintiffs No.1 and 2 in respect of the suit schedule properties which remained un- partitioned is considered by the Hon'ble Apex Court in the case of ARSHNOOR SINGH (referred supra) where it was held as follows:
"7.7. In the present case, the succession opened in 1951 on the death of Lal Singh. The nature of the property inherited by his son Inder Singh was coparcenary in nature. Even though Inder Singh had effected a partition of the coparcenary property amongst his sons in 1964, the nature of the property inherited by
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NC: 2025:KHC-D:9125-DB RFA No. 100539 of 2018 C/W RFA No. 100149 of 2020 HC-KAR Inder Singh's sons would remain as coparcenary property qua their male descendants up to three degrees below them.
7.8. The judgment in Uttam v. Saubhag Singh [Uttam v. Saubhag Singh, (2016) 4 SCC 68 : (2016) 2 SCC (Civ) 545] relied upon by the respondents is not applicable to the facts of the present case. In Uttam2, the appellant therein was claiming a share in the coparcenary property of his grandfather, who had died in 1973 before the appellant was born. The succession opened in 1973 after the Hindu Succession Act, 1956 came into force. The Court was concerned with the share of the appellant's grandfather in the ancestral property, and the impact of Section 8 of the Hindu Succession Act, 1956. In light of these facts, this Court held that after property is distributed in accordance with Section 8 of the Hindu Succession Act, 1956, such property ceases to be joint family property in the hands of the various persons who have succeeded to it. It was therefore held that the appellant was not a coparcener vis-à-vis the share of his grandfather.
7.9. In the present case, the entire property of Lal Singh was inherited by his son Inder Singh as coparcenary property prior to 1956. This coparcenary property was partitioned between the three sons of Inder Singh by the court vide a decree of partition dated 4-11- 1964. The shares allotted in partition to the coparceners, continued to remain coparcenary property in their hands qua their male descendants. As a consequence, the
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NC: 2025:KHC-D:9125-DB RFA No. 100539 of 2018 C/W RFA No. 100149 of 2020 HC-KAR property allotted to Dharam Singh in partition continued to remain coparcenary property qua the appellant.
7.10. With respect to the devolution of a share acquired on partition, Mulla on Hindu Law (22nd Edn.) states the following:
"339. Devolution of share acquired on partition.--The effect of a partition is to dissolve the coparcenary, with the result, that the separating members thenceforth hold their respective shares as their separate property, and the share of each member will pass on his death to his heirs. However, if a member while separating from his other coparceners continues joint with his own male issue, the share allotted to him on partition, will in his hands, retain the character of a coparcenary property as regards the male issue [Section 221, sub-section (4)]."
(emphasis supplied) 7.11. This Court in Valliammai Achi v. Nagappa Chettiar, held that: (AIR p. 1156, para 10) "10. ... It is well settled that the share which a co-sharer obtains on partition of ancestral property is ancestral property as regards his male issues. They take an interest in it by birth whether they are in existence at the time of partition or are born subsequently; [see Hindu Law by Mulla, Thirteenth Edn. p. 249, Para 223(2)(4)]. If that is so and the character of the ancestral property does not change so far as sons are concerned even after partition, we fail to see how that character can change merely because the father makes a Will by which he gives the residue of the joint family property (after making certain bequests) to the son."
(emphasis supplied)
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NC: 2025:KHC-D:9125-DB RFA No. 100539 of 2018 C/W RFA No. 100149 of 2020 HC-KAR 7.12. The suit property which came to the share of late Dharam Singh through partition, remained coparcenary property qua his son, the appellant herein, who became a coparcener in the suit property on his birth i.e. on 22-8-1985. Dharam Singh purportedly executed the two sale deeds on 1-9-1999 in favour of Respondent 1 after the appellant became a coparcener in the suit property."
21. It is not the case of the plaintiffs that the suit schedule 'A' properties were encumbered or alienated before the birth of the plaintiff No.1. As a matter of fact in the written statements, except pleading about the criminal cases and the matrimonial disputes, the defendant No.1 did not even assert that the suit schedule 'A' properties belonged to him absolutely. On the contrary, the defendant No.1 has focused more on protecting the suit schedule 'B' property on the ground that it was his self acquisition. Be that as it may, in view of the judgment of the Hon'ble Apex Court as referred above, the position of law does not require any reiteration. Nonetheless, when once the suit schedule 'A' properties came into the hands of defendant No.1 and continued in his hands until plaintiff No.1 was born, the coparcenary was recreated and the properties continued to be pressed with the seal of the co-parcenary
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NC: 2025:KHC-D:9125-DB RFA No. 100539 of 2018 C/W RFA No. 100149 of 2020 HC-KAR joint family. Therefore, the plaintiff No.1 was entitled to an undivided share in the suit schedule properties and defendant No.1 could no longer claim that the suit schedule 'A' properties were his absolute properties.
22. The judgment relied upon by the defendant No.1 in ANGADI CHANDRANNA (referred supra) is distinguishable on facts in as much as in the said case, the person in whose hands the properties of the joint family came after partition, encumbered it before a coparcenary was recreated. It was in that circumstance that the Hon'ble Apex Court held that the properties would become the self acquisition of the sole surviving coparcener and his children would not have any share in the said properties.
23. In view of the aforesaid discussion, we have no hesitation to hold that the trial Court was right in holding that the plaintiff No.1 was entitled to a share in the suit schedule 'A' properties.
24. As regards the claim of the plaintiff No.2 is concerned, it is well settled in view of the judgment of the Hon'ble Apex Court in the case of Gurupad Khandappa
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NC: 2025:KHC-D:9125-DB RFA No. 100539 of 2018 C/W RFA No. 100149 of 2020 HC-KAR Magdum v. Hirabai Khandappa Magdum and Others reported in (1978) 3 SCC 393 that in areas where the Bombay School of Mitakshara is followed, the wife is entitled to an equal share like her son at a partition. Therefore, the plaintiff No.2 is also entitled to an equal share in the suit schedule 'A' properties along with the defendant No.1. Hence, we answer point No.(i) in favour of the plaintiffs and against the defendants No.1, 3 and 4.
25. Insofar as the second point for consideration framed by us is concerned, the trial Court has perused the records more particularly Exs.D.18 to P.89 which gave an indication that the suit schedule 'B' property was purchased by the defendant No.1 out of his own funds, which is plausible. Besides this, the defendant No.1 was an Advocate practicing in the Courts at Belagavi. Therefore, we do not propose to go into the question whether the findings of the trial Court was right or not more particularly when the plaintiffs have not chosen to challenge the judgment and decree refusing to grant share in the suit schedule 'B' property. Hence, we answer point No.(ii)
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NC: 2025:KHC-D:9125-DB RFA No. 100539 of 2018 C/W RFA No. 100149 of 2020 HC-KAR against the plaintiffs and in favour of the defendants No.1, 3 and 4.
26. Insofar as the third point for consideration is concerned, the trial Court was bound to declare the shares of the plaintiffs in the suit schedule 'A' properties. A preliminary decree is one where the shares of the parties are declared as held by the Apex Court in the case of Shub Karan Bubna Alias Shub Karan Prasad Bubna v. Sita Saran Bubna & Others reported in (2009) 9 SCC 689. Consequently, the decree passed by the trial Court is not in compliance with Order XX Rule 18 of the CPC. Hence, we hold that the plaintiffs are entitled to 2/3rd share in the suit schedule 'A' properties. The claim of the defendants No.3 and 4 for partition and separate possession of their shares in the suit schedule 'A' properties is rejected in view of the fact that the defendant No.1 admitted that the suit schedule 'A' properties were received by him at a partition between him and his brother in the year 2002 and in view of explanation to Section 6 of the Hindu Succession (Amendment) Act, 2005, the defendants No.3 and 4 were not entitled to a share therein.
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NC: 2025:KHC-D:9125-DB RFA No. 100539 of 2018 C/W RFA No. 100149 of 2020 HC-KAR
27. In view of the above, these appeals are dismissed. However, it is declared that the plaintiffs in O.S.No.55/2012 on the file of the IV Additional Senior Civil Judge and JMFC., Belagavi at Belagavi are entitled to 2/3rd share in the suit schedule 'A' properties. The claim of the defendants No.3 and 4 for partition and separate possession of their shares in the suit schedule 'A' properties is rejected.
Sd/-
(R.NATARAJ) JUDGE Sd/-
(RAJESH RAI K) JUDGE RH Ct:vh List No.: 1 Sl No.: 24